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Appeals Court Lets the FBI Resume Work on the Mar-a-Lago Document Trove

A decisive rebuke of the judge who gave Trump the special master he asked for.
September 22, 2022
Appeals Court Lets the FBI Resume Work on the Mar-a-Lago Document Trove
Former President Trump's legal team led by M. Evan Corcoran leaves the Brooklyn Federal Courthouse on September 20, 2022 in New York City. (Photo by Alex Kent/Getty Images)

If it were graded as a law school writing assignment, Judge Aileen Cannon’s decision granting Donald Trump’s request to stay the FBI’s review of classified information stolen from the White House and retrieved by a search warrant from Mar-a-Lago would garner a C-. Her analysis was sloppy, riddled with legal errors, and in places devoid of basic common sense. Yesterday, the U.S. Court of Appeals for the Eleventh Circuit reversed her in no uncertain terms. Thankfully for the American people, that court’s analysis is an A+. All three judges on the panel agreed with both the outcome and the reasoning, including two who—like Cannon—were appointed by Donald Trump. But unlike Cannon, their fidelity to the law and the integrity of the federal judiciary shone through, without a hint of ideology or bias.

Recall the basics of the special master situation: On August 8, the FBI searched Mar-a-Lago pursuant to a warrant signed by a federal magistrate judge in Florida. Trump filed a separate civil (not criminal) action before Judge Cannon, claiming that his constitutional interests were at stake and persuading her to halt the FBI’s investigation into the national security threats posed by Trump’s actions pending a separate review by a third federal judge—a “special master”—in proceedings that Cannon ordered could stretch through the end of November. Meanwhile, she let the Office of the Director of National Intelligence (ODNI) continue its investigation—just not the FBI, even though the bureau had already reviewed the seized materials by the time Trump filed his civil action.

The Department of Justice appealed, arguing that—at a minimum—Judge Cannon’s stay of the FBI’s access to over 100 documents marked confidential, secret, or top secret must be overturned. In yesterday’s ruling, the 11th Circuit agreed with DOJ, meaning that the special master no longer has jurisdiction over the classified material, and the FBI’s investigation can continue alongside ODNI’s. The balance of the 11,000 documents is still lodged with the special master, but who cares: It’s the classified stuff that matters.

What also matters is the whipsaw nature of the 11th Circuit’s prose. Clearly, the panel was acutely aware of the dangerous precedent Cannon’s ruling set, and felt the need to put to rest a number of Trump’s distortions about the case. No doubt Trump is fuming in anger after yesterday’s ruling. Cannon should be red in the face, too—out of embarrassment.

Legally speaking, the 11th Circuit focused on the four-part test for obtaining a preliminary injunction—the kind of extraordinary emergency relief that a plaintiff might secure before, say, the city shows up one day announcing plans to begin bulldozing their backyard. It’s extraordinary because it’s quick and dirty, and urgently ordered without full fact discovery and a hearing.

A preliminary injunction of this nature requires a showing that (1) the government evinced a “callous disregard” for Trump’s constitutional rights in handling the classified material; (2) Trump had an interest in and need for the classified material; (3) Trump “suffered a likelihood of irreparable injury in the form of improper disclosure of sensitive information to the public and the threat of future prosecution and the associated stigma”; and (4) Trump had no available remedy other than a stay of the FBI’s review because otherwise the United States “might just retain the property indefinitely.” (The classified property of the United States, that is.)

Here is a highlight reel from the court’s reasoning under each of the four factors.

  • On the subject of callous disregard of Trump’s constitutional rights, the court noted that this element is indispensable. In other words, without showing such a callous disregard for Trump’s rights, the case is closed. But here’s the thing: As the court notes, even Cannon herself “concluded that [Trump] did not show that the United States acted in callous disregard of his constitutional rights.” Translation: The FBI acted lawfully and constitutionally. And Cannon’s failure to stop at this factor meant she “abused [her] discretion.”The 11th Circuit went on to the other factors anyway, “for the sake of completeness.”
  • On the subject of Trump’s alleged individual interest in the stolen classified material, the court concluded that it “cannot discern” any such interest, as classified documents are in fact “owned by, produced by or for” the U.S. government or under its control. If a jewel thief steals Mrs. Smith’s diamond necklace and the police retrieve it from the thief’s home pursuant to a valid search warrant, the thief retains no individual interest in the stolen jewels, which belong to Mrs. Smith, not the thief.
  • On the subject of Trump’s cavalier claim that he declassified the documents (which, as he told Sean Hannity, could be accomplished “even by thinking about it”), the court remarked that if he did declassify some documents, which he hasn’t shown any evidence of, “that would not explain why he has a personal interest in them.” The jewels still belong to Mrs. Smith.
  • On Trump’s claim that letting the FBI conduct its investigation into the national security threat posed by Trump’s theft of the classified documents would cause him irreparable injury if the public saw the information, the court made the sensible point that the “purpose of the United States’s efforts in investigating the recovered classified documents is to limit unauthorized disclosure of the information they contain” (emphasis in original). Sharing it with a special master and Trump’s (dubiously qualified) lawyers would in fact heighten the risk of public exposure, not lower it.
  • On Trump’s claim that the FBI’s review would also stigmatize him due to “the threat of future prosecution” (an argument Cannon embraced), the 11th Circuit noted that any and every person in America who faces possible indictment has the very same problem. If Cannon were correct, civil injunctions of criminal investigations would be the rule, not the exception, because nobody wants the stigma of a possible indictment. Quoting the U.S. Supreme Court in Cobbledick v. United States, the 11th Circuit went on to send a subtle message to Trump himself on this topic: “Bearing the discomfiture and cost of a prosecution for crime even by an innocent person is one of the painful obligations of citizenship.”
  • On Trump’s claim that the civil injunction is his only recourse, the 11th Circuit’s rebuttal was also swift: Trump isn’t even seeking return of the documents (because they’re not his). “And even if he were, he has not identified any reason that he is entitled to them.”

For the non-gloaters, the most important part of the opinion comes later, with the court’s emphasis that this is very serious business relating to national security. It cited an expert affidavit produced by the government to Cannon, explaining how it’s impossible for ODNI to do its work without the help of the FBI, which has far greater investigatory powers. Cannon’s distinction between ODNI and the FBI “is untenable,” the appeals court writes. The two are “inextricably intertwined” when matters of national security are involved, and courts are directed to steer clear of intervening in such matters unless absolutely necessary.

The bottom line, the part that really matters, appears at the closing of the 29-page decision:

It is self-evident that the public has a strong interest in ensuring that the storage of the classified records did not result in “exceptionally grave damage to the national security.” Ascertaining that necessarily involves reviewing the documents, determining who had access to them and when, and deciding which (if any) sources or methods are compromised.

One can only hope that with the Cannon debacle out of the way, the FBI can now proceed apace with identifying how much damage Trump did to national security, and DOJ can determine whether and how he should be prosecuted.

Kimberly Wehle

Kimberly Wehle is a contributor to The Bulwark. She served as an assistant U.S. attorney and an associate independent counsel in the Whitewater investigation. She is currently a professor at the University of Baltimore School of Law. An ABC News legal contributor, she is the author of three books with HarperCollins: How to Read the Constitution—and Why, What You Need to Know About Voting—and Why, and, most recently, How to Think Like a Lawyer and Why—A Common-Sense Guide to Everyday Dilemmas. Her new book, Pardon Power: How the Pardon System Works—and Why, is forthcoming in September 2024 from Woodhall Press. @kimwehle.